Ardia, Torts, Fall 2016
TABLE OF CONTENTS
NEGLIGENCE – 2
D: CONTRIBUTORY NEGLIGENCE- 5
D: EXPRESS A/R – 9
D: IMPLIED A/R – 11
ASSAULT + BATTERY MERGED – 13
ASSAULT + BATTERY NOT MERGED – 15
FALSE IMPRISONMENT – 17
TRESPASS TO LAND – 19
TRESPASS TO CHATTELS – 21
CONVERSION – 23
D: SELF DEFENSE – 25
D: DEFENSE OF OTHERS – 26
D: DEFENSE OF PROPERTY – 27
D: SHOPKEEPERS PRIVILEGE – 28
D: PUBLIC NECESSITY – 30
D: PRIVATE NECESSITY – 31
D: CONSENT – 32
KEY
X =
Y =
Z =
NEGLIGENCE
P v. D: P’S PRIMA FACIE CASE FOR NEGLIGENCE
D’S DUTY
P has a strong argument that D had a duty to act as a RPP in the same or similar circumstances in [doing ________ and ________.]
Check if D has a modified duty:
Did D have special training, experience, or abilities?
A professional? If so, standard is that of an average professional of that type.
A doctor? If so, standard is that customarily provided by other physicians.
If so: Because D has special [training/experience/abilities] as a ______, D will be held to the standard of an RPP with similar attributes.
Was D a child?
If so, standard is that of a child with the same age, intelligence, maturity, training, and experience.
Physically disabled? Standard is a RPP with same disabilities.
Note: Mental disabilities do NOT modify the standard of care!
Does negligence per se apply to set a different duty and establish breach?
P’S CASE FOR NEGLIGENCE PER SE
P will claim that the [relevant statute] establishes a different duty of care for D than a RPP, and that D clearly violated the statutory duty by ______. I will discuss each of the requirements of P’s claim in turn.
Specific Duty
P has a [strong/weak] argument that the statute clearly defines a specific required standard of conduct. [Analyze opposing argument]
Civil Liability
P has a [strong/weak] argument that the statute provides for a civil liability. [Analyze opposing argument]
Type of Harm
P has a [strong/weak] argument that the legislature that enacted the statute intended to prevent the type of harm that befell the P. [Analyze opposing argument]
Class of Persons
P has a [strong/weak] argument that P is a member of the class of persons that the legislature that enacted the statute intended to protect. [Analyze opposing argument]
Proximate Cause
P has a [strong/weak] argument that D’s violation of the statute was the proximate cause of P’s injury. [Analyze opposing argument]
D’S DEFENSES TO NEGLIGENCE PER SE
The court will consider whether D has a valid excuse for negligence per se. [Analyze opposing argument]
Factors to consider:
Was D incapacitated?
Too young?
Neither knew nor should have known to comply?
Unable after reasonable diligence to comply?
Compliance would create greater risk of harm than noncompliance?
Statute confusingly written?
D’S BREACH
2A. P’s Theory
P’s theory of breach would be a [RPP or modified RPP] would foreseen [x, y and z] types of harm, to _______ class of persons.
P has a [strong/weak] argument that a RPP would have done [x, y and z] to mitigate the risk, but D failed to do so. [Analyze opposing argument]
Note: Factors are likelihood of harm, magnitude of harm, cost of avoiding the risk.
Note: is there a public policy argument D could use to defend D’s actions as necessary for the public good?
IF P HAS NO EVIDENCE: 2B. RIL: Three Tests
RIL may assist P’s claim in surviving a motion for summary judgment, by creating an inference of duty and breach, as well as a presumption in favor of D’s negligence.
Common Analysis
The court could use three different but overlapping tests to evaluate res ipsa loquitur, all of which ask whether the accident ordinarily does not happen without negligence. [Analyze opposing argument]
Differing Analyses
The three tests differ as to how they analyze whether the D was more likely than not the one who was negligent. I will discuss each test in turn.
Test One: Common Law
Exclusive Control
In addition to considering whether the accident ordinarily does not happen without negligence, as discussed above, the common law test also considers whether the instrumentality/agent which caused the harm was under the exclusive control of D. [Analyze opposing argument]
Contributory Negligence
Common law also considers whether P was contributorily negligent. [Analyze opposing argument]
Test Two: Restatement Second
D’s Breach of Duty
In addition to considering whether the accident ordinarily does not happen w
IF APPLICABLE: 4C. Superseding cause
D has a weak argument that [insert intervening act] was not foreseeable, because ______, and therefore P’s claim should fail at proximate cause.
However, P has as strong argument that the courts focus on the foreseeability of the type of harm and class of persons, not the intervening act, and therefore D still proximately cause of P’s injuries.
P’S DAMAGES
P will claim damages for _______, and will want D to indemnify her for any claims brought against P for __________.
Note: Multiple D’s?
The court will likely apply joint and several liability, and hold D liable for all damages.
P v. D: D’S DEFENSES TO NEGLIGENCE
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CONTRIBUTORY NEGLIGENCE
P v. D: D’s DEFENSE OF CONTRIBUTORY NEGLIGENCE
At this point in the case, D will likely argue that his liability for negligence should be reduced or eliminated because P was contributorily negligent.
P’S DUTY
D has a strong argument that P had a duty to act as a RPP in the same or similar circumstances in [doing ________ and ________.]
Check if P has a modified duty:
Did P have special training, experience, or abilities?
A professional? If so, standard is that of an average professional of that type.
A doctor? If so, standard is that customarily provided by other physicians.
If so: Because D has special [training/experience/abilities] as a ______, D will be held to the standard of an RPP with similar attributes.
Was P a child?
If so, standard is that of a child with the same age, intelligence, maturity, training, and experience.
Physically disabled? Standard is a RPP with same disabilities.
Note: Mental disabilities do NOT modify the standard of care!
